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PacifiCorp sanctions to be determined closer to trial

Potential sanctions against PacifiCorp in a class action lawsuit by wildfire survivors may be decided right before the trial, while a special master is helping manage other pending motions.

During a hearing April 7 in Multnomah County Circuit Court, Judge Steffan Alexander said he planned to rule on two pending motions for sanctions April 21 ahead of a trial set for April 24.

The trial is expected to last two months and will determine if PacifiCorp is liable for the Santiam, Obenchain, 242 and Echo Mountain Complex fires from 2020. More than 5,000 class members are seeking $2.2 billion in common damages, in addition to potential individual awards.

PacifiCorp has denied wrongdoing.

Plaintiffs claim PacifiCorp has ignored evidentiary rules, including an order by Alexander for company employees to testify about the causes and origins of the fires. Plaintiffs have asked for PacifiCorp’s answer to the lawsuit to be thrown out, which could result in a default judgment against the company.

During the April 7 hearing, PacifiCorp attorneys said plaintiffs have given no evidence of bad faith as the company has willingly turned over more than 90,000 documents. 

Attorney Alison Plessman said, if PacifiCorp wanted to ignore evidentiary rules, it would not have turned over Skype messages from its own employees potentially implicating the company in the fires. 

The messages in question were released to plaintiffs Feb. 17 and showed conversations between a PacifiCorp scientist and engineer as the fires broke out. They discussed how close flames were to power lines and said they hoped the company was not responsible.

Plessman said this evidence was turned over as soon as defendants became aware, and argued plaintiffs are seeking sanctions to cover their own inaction.

“(Plaintiffs) just can’t simply blame their lack of diligence on PacifiCorp,” she said.

Plaintiff attorney Cody Berne said PacifiCorp’s lack of compliance with evidentiary rules is not confined to a single instance but has been a repeated pattern. He said not only have vital documents been withheld or destroyed, but key witnesses have been underprepared for depositions and coached into giving non-answers.

“For more than two years, PacifiCorp has engaged in repeated attempts to hide those facts, to withhold and bury evidence of its bad acts,” said Berne, adding the motions for sanctions are “about the integrity of the judicial system.”

After hearing arguments, Alexander said he would take both sides into consideration and will strive to have a ruling ready the morning of April 21 before jury selection begins.

Alexander did grant a motion April 7 by defendants to bifurcate the trial into a punitive damages phase and a compensatory damages phase to increase the efficiency of court resources. 

Alexander also denied a motion by defendants to decertify the class of plaintiffs on the grounds that fire survivors have common causes for damages despite any individual losses.

This was the latest of multiple attempts by PacifiCorp to decertify the class, which it argues is too broad. Alexander’s original decision to certify in May of 2022 was appealed by defendants to the Oregon Court of Appeals, and on March 28 Alexander’s decision was upheld.

Meanwhile former Multnomah County Circuit Court Judge Jerome LaBarre has been appointed special master to resolve a number of pending motions related to depositions and testimony. 

During a hearing April 11, LaBarre said he planned to rule on these motions by the end of the week and encouraged parties to provide any information they felt was necessary for a ruling.

According to the Federal Judicial Center (FJC), special masters help resolve “fact-intensive” cases. An FJC study published in 2000 said special master appointments are highly unusual and accounted for 0.2 percent of cases studied.

Berne told LaBarre PacifiCorp has attempted to “make as big a mess as possible” through a slew of last-minute, complicated motions. LaBarre said he will work to resolve “all matters submitted” by Friday, April 14, with the exception of the motions for sanctions.

Editor’s note: This article has been corrected to accurately reflect the number of class members.

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